A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The law pertaining to these two kinds of marks is nearly indistinguishable.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the US Patent and Trademark Office (USPTO).
Trademark rights arise from use of the mark, not from registering it. Even without a registration, one acquires rights. So why seek a registration? Registration confers the following advantages onto the holder:
- Constructive notice to the public of the registrant’s claim of ownership of the mark
- A legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration
- The ability to bring an action concerning the mark in federal court
- The use of the U.S registration as a basis to obtain registration in foreign countries
- The ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods
- Other non-legal benefits, such as a better bargaining position with an adversary or potential buyer.